Alabama Advisory Opinions September 20, 2000: AGO 2000-238 (September 20, 2000)

AGO 2000-238.

Dear Mr. Hambrick:

This opinion of the Attorney General is issued in response to your request.

According to Act No. 94-382, is the probate judge of Jackson County entitled to be paid $.05 per name on the list of qualified voters prepared pursuant to section 17-4-138 of the Code of Alabama?

FACTS AND ANALYSIS

Your request states that you took office as the Jackson County probate judge on January 17, 1995, and since that time have prepared, pursuant to section 17-4-138, the lists of qualified electors for all applicable elections. Section 17-4-138 of the Code of Alabama provides in pertinent part:

The judge of probate may employ such assistants and clerical help as may be necessary to complete and properly prepare the list of qualified electors which the judge of probate is required to furnish the election inspectors. The judge of probate shall receive or such assistants shall be paid out of the county treasury by warrants, drawn by the county commission on certificate of the probate judge, accompanied by the certificates of the person being paid, showing the amount is due under the provisions of this chapter, but the entire amount spent for the preparation of such lists shall not exceed a sum equal to the amount obtained by multiplying the number of names on said list by $.05 for the preparation of such list.

Your request asks whether, in light of Act No. 94-382, the probate judge of Jackson County may receive $.05 per name on the list of qualified voters prepared pursuant to section 17-4-138 of the Code of Alabama. Act No. 94-382 states in pertinent part:

Section 1. In Jackson County, effective at the beginning of the next term of office, the judge of probate shall receive no compensation or fees for publishing the list of qualified electors in the county pursuant to Section 17-4-129, Code of Alabama 1975.

Section 17-4-129 of the Code of Alabama explains the method by which the probate judge shall publish the list of qualified electors. That section states:

The judge of probate shall publish a correct alphabetical list of qualified electors by precinct, district or subdivision wherein each elector is registered to vote, in some newspaper with general circulation in the county, on or before the twentieth day preceding the regularly scheduled primary election. Such list shall be accompanied by a certificate that said lists contain the names of all qualified electors registered as of the date shown on the list certified by the board of registrars. Such list shall further state that any elector whose name was inadvertently omitted from the list shall have 10 days in which to have his or her name entered upon the lists of qualified voters. If within 10 days any voter shall reasonably satisfy the board of registrars by proper proof that any name should be added to the list, the board shall add such name to the list. The supplemental list of registered voters inadvertently omitted from the original list shall be published once in a newspaper of general circulation in the county on or before the seventh day preceding the date of the primary election.

While section 17-4-138 of the Code provides that the probate judge shall receive compensation for preparing the list of qualified electors, section 17-4-129 does not mention compensation for preparing the list for publication. Act No. 94-382 states that the Jackson County probate judge shall receive no compensation for publishing the list of qualified electors in the county pursuant to section 17-4-129. The Jackson County probate judge may, however, receive $.05 per name for the list of qualified electors prepared pursuant to section 17-4-138. The probate judge may receive $.05 per name on the list of qualified voters without regard to whether he or she is compensated on the fee or the salary system. See Opinion to Freddie Armstead, President, Marengo County Commission, dated November 10, 1992, A. G. No. 93-00057 and Opinion to Julie S. Moody, Attorney, Covington County Commission, dated January 5, 1999, A. G. No. 99-00070.

The probate judge of Jackson County is entitled to receive $.05 per name for the list of qualified electors prepared pursuant to section 17-4-138 of the Code of Alabama.

QUESTION 2

If the Jackson County probate judge may receive the fees provided by section 17-4-138, what is the statute of limitations on claiming compensation not yet paid?

Section 6-2-34(9) of the Code of Alabama states that an action on a simple contract must be commenced within six years. Because an action by the probate judge to recover salary would be based on an employment contract with Jackson County, the statute of limitations to claim back pay is six years. See Opinion to Honorable Tom Sowa, Attorney, Calhoun County Commission, dated October 7, 1994, A.G. No. 95-00005. See also Kirkland v. Jefferson County , 12 So. 2d 347 (Ala. 1943). Because you took office as probate judge on January 17, 1995, the statute of limitations has not run on your claim for back pay. CONCLUSION

The statute of limitations to claim back pay is six years. The Jackson County probate judge may recover back pay for the list of qualified voters he has prepared since he took office on January 17, 1995.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Terri Olive Tompkins of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/TOT

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